Satya Prakash v. Union of India

3. The relevant extracts of CSE, 1996 is in the following terms: “On the results of the Civil Services (Mains) Examination held by the Union Public Service Commission in November/December, 1996 and Personality Test Boards held in April/May, 1997. The total number of candidates recommended for appointment is 737 including 212 belonging to the Other Backward Classes, 138 to the Scheduled Castes and 59 to the Scheduled Tribes. Appointment to the various Services will be made according to the number of vacancies available with due consideration to the provisions contained in Rules 4 and 18 of the Rules for the examination relating to restrictions on the eligibility of candidates appointed to the Indian Police Service and Police Services Group „B‟/Central Services, Group „A‟ and Group „B‟ on the results of an earlier examination and subject to final decision of the Supreme Court/CATs on the SLPs/O.As. pending therein. The number of vacancies expected to be filled is 76 (38 General, 20 Other Backward Classes, 12 Scheduled Castes and 6 Scheduled Tribes) for the Indian Administrative Service, 14 (7 General, 3 Other Backward Classes, 3 Scheduled Castes and 1 Scheduled Tribes) for the Indian Foreign Service; 96 (48 General, 25 Other Backward Classes, 15 Scheduled Castes and 8 Scheduled Tribes) for the Indian Police Service, 308 (157 General, 72 Other Backward Classes, 56 Scheduled Castes and 23 Scheduled Tribes) for the Central Services, Group „A‟ and 245 (133 General, 54 Other Backward Classes, 39 Scheduled Castes and 19 Scheduled Tribes) for Group „B‟ Services. The vacancies indicated above is subject to revision.” The following chart would show the manner in which different categories of jobs were to be allocated to different categories of candidates: Category/C adre IAS IFS IPS Gr.A Gr.B Total General 38 07 48 157 133 383 OBC 20 03 25 72 54 174 SC 12 03 15 56 39 125 ST 06 01 08 23 19 57 Total 76 14 96 308 245 739 A bare perusal of the aforesaid chart would clearly show that 174 posts were to be filled up by OBC candidates selected with relaxed standard as per the extent rules.

4. The respondents contended before the Tribunal as also before us that all 174 posts earmarked for OBC candidates have been filled up in the following terms:

However, from the impugned judgments of the learned Tribunal as also the counter affidavit filed by the respondents, it would appear that there had been one to one correspondence between a sanctioned vacant post and the candidate recommended. It is also not in dispute that although the petitioner was selected as an OBC category candidate and was placed at Serial No, 606, whereas the candidate whose name figured at Serial No. 620 had been offered a job, he was denied the same. The petitioner filed a representation in this behalf, but the same was rejected by a letter dated 10.10.1997, which is in the following terms: “No. 13011/50/97-AIS(I) Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training New Delhi, Dated: 10.10.1997 To, 606 OBC WA SATYA PRAKASH CA-BLOCK, HOUSE NO. 59-C, SHALIMAR BAGH, DELHI-52. Subject: Civil Services (Main) Examination, 1996 —Allocation of Service reg. Madam/Sir, I am directed to say that you have been considered for appointment to a service on the basis of CSE-1996 in accordance with CSE-96 Rules. However, due to non-availability of any vacancy in your turn, you have not been allocated to any service on the basis of said examination. Yours faithfully, Sd/- (Bharat Prasad) Under Secretary to the Government of India Questioning the aforesaid order, the petitioner filed an Original Application before the Tribunal, which was marked as O.A. No. 294 of 1998. By reason of the impugned judgment dated 3.5.1999 in O.A. No. 294 of 1998, the said Original Application was dismissed.

5. The learned Tribunal noticed that both the parties raised their rival contentions inter alia relying on or on the basis of the judgment of the Apex Court in Shri Ritesh R. Sah v. Dr. Y.L. Yamul and Ors., JT 1996 (2) SC 495. In the said judgment, it has been held: “……In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category canot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should he considered and they will be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as a open category candidate and not as a reserved category candidate.” The respondents contended that 36 persons, who fell in the OBC quota also competed on merit and as such they were to be adjusted although they were recommended in the general merit list having regard to the decision of the Apex Court in Ritesh R. Sah's case (supra).

7. The contention of the petitioner, however, on the other hand, is that having regard to the various judgments, which had been referred to in Ritesh R. Sah's case (supra), including the Constitution Bench decision of the Apex Court in R.K. Sabharwal v. State of Punjab, JT 1995 (2) SC 351: (1995) 2 SCC 745, the Tribunal must be held to have committed an error insofar as it failed to take into consideration that a reserved category candidate is selected in the general merit list may be granted job from the reserved category, but for computing the percentage of reservation he would be deemed to have been allocated a job as a general category candidate, as a result whereof, the chance of other OBC category candidates in the matter of allocation of any other service is not taken away or otherwise affected.

8. The learned Tribunal in its judgment held:

19. Despite the aforementioned finding that an illegality has been committed, the petitioner had been denied that relief only on the ground that there was no arbitrariness on the part of the respondents.

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21. For the reasons aforementioned, the action on the part of the respondents being contrary to the law laid down by the Apex Court, as also contrary to the Article 16(4) of the Constitution of India cannot be sustained.”

13. The aforesaid order makes it very clear that the Union Of India was directed to allot suitable job to the petitioner, and the Union Of India being aggrieved by the order passed by the Division Bench of this Court preferred an appeal before the Hon‟ble Supreme Court.

14. The appeal preferred in the matter was decided by the Hon‟ble Supreme Court vide judgement dated 05.04.2006, in the case of Union Of India And Another Vs. Satya Prakash And Others, (2006) 4 Supreme Court Cases 550, and paragraphs 20, 21, 22 and 23 of the order passed by the Hon‟ble Supreme Court read as under. “20. If a candidate of the Scheduled Caste, the Scheduled Tribe and Other Backward Class, who has been recommended by the Commission without resorting to the relaxed standard could not get his/her own preference in the merit list, he/she can opt a preference from the reserved category and in such process the choice of preference of the reserved category recommended by resorting to the relaxed standard will be pushed further down but shall be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allocated to a service/post in accordance with their preference.

21. In the present case, the Commission recommended one-toone vacancy, altogether 737 candidates against 737 posts. Against OBC category 174 candidates were recommended against 174 posts. By opting a preference, the quota reserved for an OBC candidate does not exhaust. There are still vacancies after allocation of all the candidates in the order of preference who can be allotted to any of the remaining services/posts in which there are vacancies after allocation of all the candidates who can be allotted to the services/posts in accordance with their preference. This is the mandate of the note appended to Rule 2.

22. At the risk of repetition, the Commission recommended 737 candidates against 737 posts. So far as OBC category is concerned, 174 candidates were recommended against 174 posts. We are totally at a loss as to what had happened to those remaining services/posts after allocation of services to all the candidates in terms of their preferences. We say no more.

23. In the view that we have taken, we do not see any infirmity whatsoever in the orders impugned passed by the High Court, which would warrant our interference. These appeals are devoid of merit and are dismissed with costs, quantified at Rs: 10,000 for each of the respondents. The appellant is directed to allot jobs to the respondents within a period of one month from today. ”

15. The petitioner, thereafter, preferred a contempt petition and the same was registered as Contempt Petition No. 13/2007 and the Hon‟ble Supreme Court has dismissed the Contempt Petition by an order dated 07.09.2007.

16. During the pendency of the Contempt Petition, it was brought to the notice of the Hon‟ble Supreme Court that the petitioner has been granted an appointment in the CISF, and Hon‟ble Supreme Court by the aforesaid order, dismissed the Contempt Petition, and allowed the petitioner to join the CISF within four weeks. Copy of the order is reproduced hereunder. “ORDER No contempt is made out. The contempt petition is accordingly dismissed. Notice is discharged' The petitioner shall be allowed to join the post in Central Industrial Security Force within four weeks from today. I.A.Nos.[3] and 4 are dismissed.”

17. The petitioner not being satisfied with the order of appointment granting an appointment in CISF dated 24.08.2007, preferred an Interlocutory Application in disposed of Contempt Petition, and I.A. NO. 6/2007 was again disposed of by the Hon‟ble Supreme Court by an order dated 21.09.2007. The order dated 21.09.2007 passed by the Hon‟ble Supreme Court is reproduced here under. “ORDER Taken on board. The dismissal of the contempt petition would not preclude the petitioner to file OA before the Tribunal if occasion so arises with regard to his appointment, seniority and other benefits in C.I.S.F. I.A. No. 6 of 2007 is disposed of accordingly.”

18. Meaning thereby, the allotment of the petitioner to CISF attained finality and the only liberty granted to the petitioner was to approach the Tribunal, if occasion arises with regard to his appointment, seniority and other benefits in CISF. The petitioner – knowing fully well that he cannot be allotted any other Service, again preferred an Original Application, and the Tribunal has dismissed the same.

19. The other important aspect of the case is that the petitioner submitted his joining in CISF in the year 2014, and before completing his Probationary Period also resigned from CISF while he was on probation, meaning thereby, the petitioner who is now not in Service of CISF, is claiming seniority in CISF.

20. In the considered opinion of this court, the Tribunal was justified in dismissing the Original Application as the petitioner‟s fate in respect of joining other Services was sealed by the Hon‟ble Supreme Court, and he was given liberty only to raise the issue in respect of seniority alone. The petitioner was selected in 1996 and joined the Services only on 15.09.2008, and did not complete even the basic training required for officers in CISF. He was a Probationer and as a Probationer, he submitted a resignation, which has been accepted by the competent authority. The order passed by the Tribunal in Paragraphs 35 to 39 reads as under:- “35. Now we come to the final of the issues as to whether the applicant is entitled to any of the reliefs or not? Here, we take note of the arguments of the learned counsel for the respondents that all the doors have been closed to the applicant by the order of the Hon'ble High Court dated 17.10.2008. The Hon'ble High Court has taken note, in its order under reference, of the submissions of the applicant before the Hon'ble Supreme Court while seeking the clarification that there were serious contradictions in the submissions of the respondents regarding carrying forward vacancies and information provided by the respondent no.1 to respondent no.2. The issue of allocation of job to him could not have been raised in the contempt petition as the same would be beyond its scope. The applicant had apprehended that serious consequences would flow to his disadvantage; it would be in the interest of justice that he should be allowed to re-agitate the issue of allocation of job to him in appropriate judicial forum as justice is a virtue which transcends all barriers. Neither the rule of procedure nor technicalities of law can stand in its way. Even the law bends before justice. He was aware of the difficulties that he would suffer in CISF as being late entrant. The Hon'ble High Court considered this issue and held as under:-

In view of the aforesaid observation of the Hon'ble High Court, we are of the view that the applicant is precluded from reagitating the issue of allocation of another Service. Besides, we cannot ignore the fact that while the applicant was selected in the year 1996, he joined the Service only on 15.09.2008 and directing allocation of another Service to him after a lapse of almost 16 years now would amount to virtually opening a Pandora's box of litigation and unsettling the hitherto settled positions.

36. Now we summarize the definite issues under the framework of harmonious consideration. The Hon'ble Supreme Court did indeed leave a door open for the applicant. However, we take a note of the fact that the service conditions of the applicant in CISF would be governed by their recruitment rules which did not permit parity. Though the Tribunal could have issued the order but the clear cut finding that reconsideration for allocation of another Service is ruled out stands in his way. Another factor to be considered here is that the applicant had filed an SLP against the Hon‟ble High Court's order dated 17.08.2010 which was subsequently permitted to be withdrawn by the Hon'ble Supreme Court and, therefore, the order of the Hon'ble High Court has attained finality.

37. At the end, we would like to hold that it is admitted that the applicant was serving in NTPC where he was having his own seniority. It also needs to be taken cognizance that despite being placed in the general list, he was not given appointment and he had to litigate for a long period of 11-12 years in order to safeguard his right. Therefore, at the earliest he could join in the year 2007 and the fact that he delayed his joining in anticipation of the relief from the Courts can perhaps be construed to be an error of judgment on the part of the applicant. However, even by pursuing the litigation, withdrawal of SLP by him from the Hon'ble Supreme Court has sealed his fate. We also consider the fact that the decision to join the CISF was his own decision. Litigation has always been an uncertain thing and nobody can predict that whether the outcome of the litigation would only be in his favour and in his favour alone. Therefore, he could have chosen at that point of time not to join the CISF and retained his seniority. Therefore, the choice not to join his Service and further to have chosen to litigate from 2007 onwards is one of his own making and none other can be blamed for that.

38. We are of the view that in light of the order of the Hon'ble High Court dated 17.10.2008, the question relating to allocation of alternative service is no more open to be adjudicated. The applicant cannot rake up the same at this stage. We find support from the decision of the Honble Supreme Court in the matter of Shanker Raju versus Union of India and Others [2011 (2) SCC 132] wherein it has been held as under:-

words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis." This principle has been further corroborated in the case of H.S. Vankani and Others versus State of Gujarat and Others [AIR 2010 1714]. The question of allocating seniority as per the list drawn up by the Union Public Service Commission is also not found feasible for the simple reason that the recruitment and the rules governing conditions of the host organization do not permit the same. The matter has already been covered in respect of Issue No.3 in this very order. It is not that we do not have sympathy for the applicant but at the same time it is equally true that he himself is responsible for his own plight. He did not join following the allocation and instead went in for litigation. It is well recognized that his right to litigate would have remained unaffected by his joining.

39. In totality of facts and circumstances of this case, we find the Original Application being devoid of merit and the same is accordingly dismissed without there being any order as to costs.”

21. The tribunal has dismissed the Original Application preferred by the petitioner and the petitioner who is not in service who has resigned while continuing as a probationer from the services of CISF, is claiming seniority and other service benefits.

22. The order passed by the Hon‟ble Supreme Court in Contempt Petitioner No. 13/2007 dated 07.09.2007 makes it very clear that the Hon‟ble Supreme Court was satisfied that no contempt is made out in the matter, and the only liberty granted to the petitioner was to join CISF. The petitioner again, in a disposed of contempt matter, preferred an Interlocutory Application, i.e. I. A. No. 6/2007 which was disposed of on 21.09.2007, and the petitioner sought allocation to other services as well as prayed for grant of other benefits. The Hon‟ble Supreme Court has disposed of I.A. NO. 6/2007 by an order dated 21.09.2007, sealing the fate of the petitioner for allocation to other services and the only liberty granted to the petitioner was to file an Original Application with regard to appointment, seniority and other benefits in CISF alone. The petitioner did join the CISF on 15.09.2008, and he was a probationer and for the reasons best known to him, submitted a resignation without completing the basic training required for Officers in CISF, and the fact remains that now he is not even a member of CISF.

23. In the considered opinion of this Court, once the petitioner is not a member of CISF, the issue of adjudication of the seniority in CISF does not arise. Therefore, this Court is of the considered opinion that the Tribunal was justified in dismissing the Original Application preferred by the petitioner claiming seniority in CISF. This Court does not find any reason to interfere with the order passed by the Central Administrative Tribunal, and, therefore, the writ petition is, accordingly, dismissed. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE

JUDGE JULY 15, 2022 aks